Defamation generally means making a false statement that harms someone’s reputation. In England and Wales, it covers both:
- Libel – written statements (including online posts).
- Slander – spoken statements.
To succeed in a defamation claim under the Defamation Act 2013, the claimant must show that the statement caused, or is likely to cause, serious harm to their reputation. For companies, this means serious financial loss.
Not every negative comment is defamatory. Common defences include:
- Truth – if the statement is substantially true.
- Honest opinion – if it’s clearly an opinion based on facts.
- Public interest – if the statement was published responsibly on a matter of public concern.
- Privilege – certain statements made in court or Parliament are protected.
Defamation cases can be expensive and time-consuming. Legal costs often run into tens of thousands of pounds, and damages can be significant. For SMEs, defending a claim can be financially draining, even if you win. Courts also expect claimants to meet strict procedural requirements, which adds complexity.
Since 2013, the law requires proof of “serious harm” to reputation. This means more than hurt feelings—it must show a real impact on how others view the claimant. For businesses, that usually means evidence of lost customers or contracts.
A recent High Court decision illustrates how this test works in practice. The case involved a Facebook post made during a family dispute, which the claimant argued was defamatory. The High Court struck out the claim because it failed to show serious harm. The judge found:
- The words complained of were relatively modest.
- The post was only seen by about 200 Facebook friends.
- There was no evidence of wider sharing or republication.
- The claimant focused on personal upset rather than proving readers thought less of her.
The court emphasised that the proper focus is on the impact on readers, not the claimant’s feelings. Without evidence, such as testimony from people who changed their opinion, the claim could not succeed. This case reinforces that defamation claims are not easy wins. Courts apply the serious harm test strictly, and weak claims risk being dismissed early.
What Does This Mean for SMEs?
- Think before you post: Social media comments can lead to legal trouble, but only if they cause serious reputational harm.
- Evidence matters: If you’re considering a claim, gather proof that the statement damaged your reputation or business.
- Consider alternatives: Sometimes, a polite request for removal or a clarification works better than litigation. If it’s online, contact the website’s host to request that they remove the offending post.
- Budget realistically: Defamation cases are very costly and unpredictable.
Defamation law protects reputations, but claims are hard to win without clear evidence of serious harm. For SMEs, prevention, through careful communication, is often better than cure.
The serious harm test applies in England and Wales under the Defamation Act 2013. Scotland and Northern Ireland have similar principles, but the legislation and procedures differ slightly.